Friday, February 20, 2015

Trafficking is not just about sex workers – Charles Hector

Published: 19 February 2015 8:33 PM

Many of us wrongly believe that trafficking in persons is only about
sex workers – but this is not true as it includes also the exploitation
of workers.
Trafficking in persons is defined internationally as constituting three
elements: (a) an “action”, being recruitment, transportation, transfer,
harbouring or receipt of persons; (b) a “means” by which that action is
achieved, for example threat or use of force, or other forms of
coercion, abduction, fraud, deception, abuse of power or a position of
vulnerability and the giving or receiving of payments or benefits to
achieve the consent of a person having control over another person; and
(c) a “purpose” of the intended action or means, namely exploitation.
Note, the consent of the victim to the intended exploitation is
irrelevant.
Likewise in Malaysia, the Anti-Trafficking in Persons Act 2007 defines
"trafficking in persons" or "traffics in persons" means the recruiting,
transporting, transferring, harbouring, providing or receiving of a
person for the purpose of exploitation; and "exploitation" means all
forms of sexual exploitation, forced labour or services, slavery or
practices similar to slavery, servitude, any illegal activity or the
removal of human organs.
We will look specifically at worker exploitation in Malaysia, including
forced labour or services. Forced or compulsory labour is defined as
"all work or service which is exacted from any person under the menace
of any penalty and for which the said person has not offered himself
voluntarily."
Forced labour refers to situations in which persons are coerced to work
through the use of violence or intimidation, or by more subtle means
such as accumulated debt, retention of identity papers or threats of
denunciation to immigration authorities.The local worker: victim of trafficking?
The local worker in Malaysia can come under the threat of dismissal, or
a delay in promotion or wage increase. They are discouraged from
claiming their legal rights or standing up for rights. Even trade union
leaders are not saved from such "intimidation" – and some find that they
are overlooked for promotion and wage increase exercises when their
fellow workers, not union leaders or active union members, get promoted
or wage increases.
Unionists are also targeted for disciplinary action and dismissal for
the carrying out of legitimate activities like the issuance of media
statements, picketing, involvement in campaigns for the promotion and
protection of worker rights and such matters, which reasonably should be
considered as legitimate union activities.
If union members are so intimidated and under the menace of such
penalties, what more with the ordinary worker who is not unionised?The lodging of a complaint to the relevant authorities about
non-payment of wages, overtime and violation of other rights, results in
not just intimidation but even disciplinary action and even
termination.Overtime work, which as a matter of principle, requires the consent of the worker, is no more in many workplaces.Workers feel that they have no choice but to do as the employer
"orders" – and in Malaysia, the current legal limit for overtime work is
about 4 hours a day, which means that workers may end up working for
about 12 hours daily.Some workers, who are not feeling well, and wanting to go see a doctor,
are simply told that they can go see a doctor if and only they can find
a replacement for themselves in their shift.With the increased usage of short-term contracts, usually less than a
year in duration, the possibility of being exploited increases and the
ability or desire to stand up for rights diminishes.In Malaysia, the law does not set the limit of time a worker should be
on probation, and so one may be on probation for years and when on
probation, it is easier for employers to immediately terminate and
further the rights of a probationer is far less than the rights of a
confirmed worker. Workers in precarious forms of employment relationship
are more easily exploited.Debts today may not be money owed to the employer, but to third
parties, as most workers in Malaysia are indebted to banks in connection
with home or car loans, and this indebtedness that require monthly
payments makes them even more exploitable by employers.
The Malaysian Trade Union Congress (MTUC) recently called a temporary
unemployment assistance scheme to be set up, which is a good proposal
and will reduce vulnerability of Malaysian workers.Migrant workers more vulnerable to exploitationIf a Malaysian goes out, and discovers he has forgotten his National
Registration Identity Card (NRIC) or his driving licence, he is stressed
out worrying about being stopped by the police or an enforcement
officer.He is worried about arrest and possible fines. A local worker, familiar
with the local language, can quite easily call a friend/family member
and be able to escape arrest or further detention – maybe not the fine.Now, in the case of the migrant worker, it is worse. It is common
practice that many employers or their agents hold on to the passport and
work permits of their migrant worker. They justify holding these
documents as a means of preventing their migrant workers from running
away, and this is unacceptable and is against the law.When the police or enforcement officer stops a migrant, he wants to see
the original passport and work permit (and not some photocopy or a
worker identification card), and so the migrant worker may get arrested
and detained – and the one who has the ‘power’ to secure the release is
the employer or agent holding these documents.The migrant worker ends up languishing in detention for days, maybe
even weeks. Some allege that it may have been their own employer or
agent who called the enforcement officers to get them into trouble.In Malaysia, where there are about 2.9 million documented migrant
workers, and where the government admits that there are an equivalent
number or more of undocumented migrants in the country, the threat of
being arrested and detained is very real.Bound to work for one employer only
If the employer is an exploitative employer or a cheat, or the working
conditions are bad and intolerable, the local worker have the choice of
escaping this reality and finding employment elsewhere but this is not
so for the migrant worker who is bound by the work permit that allows
him to work for one employer.
Most migrants, when they come to Malaysia, are already are in debt
having expended about RM5,000 – so really the option of just going back
to the country of origin when one finds oneself in a situation of
exploitation is not an option.There is the possibility of varying the work permit and allowing such
exploited workers to work with another better employer but alas this
does not happen in most cases, and further the process of doing this is
too onerous for the poor migrant. Thus, the migrant worker have no
choice but continue to work in the exploitative situation, or
alternatively some just choose to run away and continue to work as an
undocumented migrant in Malaysia until he is caught and deported, or
manages to leave Malaysia illegally.It would be interesting if the Malaysian government provides us the
number of "illegal migrants" arrested, who previously were really
documented migrant workers. It would be good to also know why these
chose to become undocumented.Access to justice flawed and ineffectiveThe law provides several avenues for access to justice to workers but
alas the efficiency and/or speed in which it works are disappointing.Justice delayed is justice denied. As mentioned earlier, many employers
just terminate employees that lodge complaints, and for the migrant
worker, this would also mean that the employer will take steps to
terminate the work permit – hence depriving the migrant worker the right
to continue to remain and/or work legally in Malaysia.All access to justice mechanisms and labour tribunals insist on the
physical presence of the worker-complainant, and in the case of migrant
workers, to remain would mean arrest, detention, imprisonment, whipping
and deportation, all complaints, cases and even proceedings in court
will come to an end because of the absence of the complainant.Even those who remain, they would be now "illegal" and they will not
come out of fear for turning up may lead to immediate arrest.Malaysia should really provide us with statistics of how many migrant
workers have lodged complaints, and what has happened to these.In fact, maybe statistics should also be provided as to how many local
workers have lodged complaints, and what has happened to this. How many
of these workers were terminated after they lodged complaints and how
many just gave up and never turned up after that? Analysis of such data
would help us improve and make Malaysia less exploitative for workers.Remedies in law not deterrent to exploitationIf one were to look at remedies provided in law, it is pathetic and certainly cannot be considered a deterrent to exploitation.For example, a worker who has been denied 3 months wages, at the end of
the day after going through the process and winning will only get the
equivalent of that 3 months wages he was denied. Is this justice?Going through the process for justice would have cost the worker monies
in terms of transport, lost work-days wages, monies for legal
representation, etc and thus many workers will just elect not to waste
time and monies claiming rights. Maybe, the law need be amended to
ensure that employers would have to pay workers three times the value of
monies wrongfully denied, plus maybe a further order of damages.In the labour tribunals, both parties are not required to pay cost of
the winning party, but now there is that possibility of applying for a
Judicial Review to the High Court if one is dissatisfied with the
decision of the tribunal, and here it will become unaffordable to
workers and unions and there is always the risk of being ordered to pay
high costs, and of course there is the additional cost of lawyers and
court fees.Malaysia – a facilitator to trafficking?The government need to seriously consider the state of affairs and do
the needful, for we certainly do not want Malaysia to be found
responsible for creating an environment that enables the easy
exploitation of workers, both local and foreign.The US State Department Trafficking in Persons Report 2014 downgraded
Malaysia to Tier 3 from the previous standing of Tier 2 Watch List.Among others, the report had this to say: "Many Malaysian recruitment
companies, known as 'outsourcing companies', recruit workers from
foreign countries. Contractor-based labor arrangements of this type—in
which the worker may technically be employed by the recruiting
company—create vulnerabilities for workers whose day-to-day employers
generally are without legal responsibility for exploitative practices."Well, these "outsourcing companies" were recruiting both local and
migrant workers, and such "outsourced workers" find themselves in a
precarious position as they could not even benefit from the rights
accorded to union members in the workplaces. Usage of such workers do
directly weaken existing trade unions and their members making them more
susceptible to exploitation, and reducing their bargaining powers for
better rights and working conditions.Malaysia needs to be more diligent in promoting and protecting worker
rights, and stopping all forms of worker exploitation and "trafficking
of human persons".Access to justice systems and relevant laws need to be amended to
ensure speedy remedies for workers, protection for workers against
discrimination or termination just for trying to claim rights or
exercising their rights.
Migrant workers will not be made "illegal" or deported, but be allowed
to work and stay legally, until all their valid claims against employers
and others are properly heard and settled.Active enforcement to ensure rights are respected and exploitation ends
must be made a priority. It was shocking to hear from the Deputy Human
Resources Minister, Datuk Seri Ismail Abd Muttalib in September 2014
said that only 3 employers out of 10,000 employers in the private sector
have yet to implement the Minimum Wage Scheme have been taken to court.We look forward when there is no more exploitation of workers, and
Malaysia can no longer be considered a place where there is trafficking
in human persons. – February 19, 2015, The Malaysian Insider.
- See more at:
http://www.themalaysianinsider.com/sideviews/article/trafficking-is-not-just-about-sex-workers-charles-hector#sthash.7tRJv7DI.dpuf

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